TO BEARD or not to beard?
That was the question posed to an underground truck driver recently by his employer and which cost him his job when he decided to keep the goatee and moustache he had worn since the age of 19.
The recent case of Felton v BHP Billiton Pty Ltd (2015) (FWC 1838) resulted in Mr Felton being dismissed from his employment as an underground truck driver at the Olympic Dam mine operated by his employer, BHP Billiton. Mr Felton was dismissed when he refused to follow a direction to present to work clean shaven, which his employer determined was a necessity so that he would be properly fitted with a respirator that he was required to wear for health reasons.
BHP had implemented the clean shaven policy as employees were required to wear respirators because of risks of potential exposure to dust, diesel particulate matter and radon decay products. The policy had arisen after advice received by BHP that the diesel particulate matter was a human carcinogen.
Mr Felton had offered to supply his own helmet and respirator equipment as an alternative to having to shave as the equipment he proposed to use could be used without him having to shave his goatee and moustache.
Mr Felton, however, failed to convince the Commission that the alternative helmet he proposed to wear was going to be sufficient to act as a respirator and as such was not a sufficient alternative.
The Commission acknowledged that while individual rights were clearly impacted by the adoption of the clean shaven policy, the risk to the safety of employees by not enforcing the clean shaven policy was significant and due to the heightened health and safety risk, BHP was entitled to apply and enforce the clean shaven policy.
This case effectively highlights that where there is a significant health and safety issue for which the employer has an obligation to ensure that employees are protected from, that individual rights and liberties may be trumped.
- Peta Yujnovich, Senior Associate, Schultz Toomey O'Brien Lawyers - Part of the Slater and Gordon Group
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